[Federal Register Volume 72, Number 65 (Thursday, April 5, 2007)]
[Notices]
[Pages 16818-16819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6393]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-551]


In the Matter of Certain Laser Bar Code Scanners and Scan 
Engines, Components Thereof, and Products Containing Same; Notice of 
Commission Determination To Review a Final Determination on Violation 
of Section 337; Schedule for Briefing on the Issues on Review and on 
Remedy, Public Interest, and Bonding; Denial of Motion for Stay of 
Sanctions Order

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on November 20, 2006, regarding whether there is a violation 
of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in the above-
captioned investigation. The Commission has also determined to deny 
respondents' motion for stay of the ALJ's sanctions order.

FOR FURTHER INFORMATION CONTACT: Paul M. Bartkowski, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 708-5432. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436, telephone (202) 205-2000. General information concerning the 
Commission may also be obtained by accessing its Internet server at 
http://www.usitc.gov. The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information 
on this matter can be obtained by contacting the Commission's TDD 
terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION: This investigation was instituted on October 
26, 2005, based on a complaint filed by Symbol Technologies Inc. 
(``Symbol'') of Holtsville, New York. The complaint, as amended, 
alleged violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 
1337) in the importation into the United States, the sale for 
importation, and the sale within the United States after importation of 
certain laser bar code scanners or scan engines, components thereof, or 
products containing the same, by reason of infringement of various 
claims of United States Patent Nos. 5,457,308 (``the `308 patent''); 
5,545,889 (``the `889 patent''); 6,220,514 (``the `514 patent''); 
5,262,627 (``the `627 patent''); and 5,917,173 (``the `173 patent''). 
The complaint named two respondents: Metro Technologies Co., Ltd. of 
Suzhou, China; and Metrologic Instruments, Inc. of Blackwood, New 
Jersey (collectively, ``Metrologic'').
    On January 29, 2007, the ALJ issued an ID finding a violation of 
Section 337 in the importation of certain laser bar code scanners and 
scan engines, components thereof, and products containing the same, in 
connection with certain asserted claims. The ID also issued monetary 
sanctions against Respondents for discovery abuses. Complainant, 
Respondents, and the Commission investigative attorney (IA) each filed 
petitions for review on February 8, 2007. They each filed responses to 
each other's petitions on February 16, 2007.
    Meanwhile, on February 8, 2007, Metrologic filed a motion for stay 
of the ALJ's sanctions order. The IA and Symbol filed oppositions to 
the motion on February 20, 2007. Upon consideration of the parties' 
filings, the Commission has determined to deny Metrologic's motion for 
stay.
    On February 21, 2007, the Commission extended the deadline for 
determining whether to review the subject ID by fifteen (15) days, to 
March 30, 2007.
    Having examined the record of this investigation, including the 
ALJ's final ID and the submissions of the parties, the Commission has 
determined to review the final ID in part. Specifically, the Commission 
has determined to review: (1) The construction of ``single, unitary, 
flexural component'' in the `173 patent, and related issues of 
infringement, domestic industry, and validity; (2) the construction of 
``oscillatory support means'' in the `627 patent, and related issues of 
infringement, domestic industry, and validity; (3) the construction of 
claims containing the so-called ``central area'' limitations in the 
`889 patent, and related issues of infringement, domestic industry, and 
validity; (4) the construction of the ``scan fragment'' limitation in 
the `308 patent; and (5) the construction of the term ``plurality'' in 
the `308 patent. The Commission requests briefing based on the 
evidentiary record on certain of the issues on review. The Commission 
is particularly interested in responses to the following questions:
    Regarding the `173 patent:
    (1) What is the effect of Symbol's statement in the prosecution 
history that ``[c]laim 70 [issued claim 17] also contains the feature 
of allowable claim 58'' on a proper claim construction?
    (2) If Symbol's statement limited the scope of the claim, what is 
the effect on claim construction, infringement, domestic industry, and 
validity issues as they relate to the `173 patent?
    (3) If Symbol's statement limits the scope of the claim by 
providing that the component have ``spring portions integral with each 
other,'' what would be the effect, if any, on the analysis? In other 
words, if a flexural component is ``single,'' and ``unitary,'' does it 
necessarily have ``spring portions integral with each other''?
    Regarding the `627 patent:
    (1) How should the modifier ``oscillatory'' be construed in the 
limitation ``oscillatory support means''?
    (2) How does the construction of the word ``oscillatory'' affect 
infringement, domestic industry, and validity as those issues relate to 
the `627 patent?
    Regarding the `889 patent:
    (1) What effect does Symbol's statements during prosecution history 
such that the smaller mirror is ``centrally positioned'' with respect 
to the larger mirror have on claim construction?
    (2) If such statements limit claim scope, what effect does that 
limitation have on claim construction,

[[Page 16819]]

infringement, domestic industry, and validity as those issues relate to 
the `889 patent?
    Furthermore, in connection with the final disposition of this 
investigation, the Commission may (1) Issue an order that could result 
in the exclusion of the subject articles from entry into the United 
States, and/or (2) issue one or more cease and desist orders that could 
result in the respondent being required to cease and desist from 
engaging in unfair acts in the importation and sale of such articles. 
Accordingly, the Commission is interested in receiving written 
submissions that address the form of remedy, if any, that should be 
ordered. If a party seeks exclusion of an article from entry into the 
United States for purposes other than entry for consumption, the party 
should so indicate and provide information establishing that activities 
involving other types of entry either are adversely affecting it or 
likely to do so. For background, see In the Matter of Certain Devices 
for Connecting Computers via Telephone Lines, Inv. No. 337-TA-360, 
USITC Pub. No. 2843 (December 1994) (Commission Opinion).
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or cease and desist orders would have on (1) The 
public health and welfare, (2) competitive conditions in the U.S. 
economy, (3) U.S. production of articles that are like or directly 
competitive with those that are subject to investigation, and (4) U.S. 
consumers. The Commission is therefore interested in receiving written 
submissions that address the aforementioned public interest factors in 
the context of this investigation.
    If the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action. See Presidential Memorandum of 
July 21, 2005, 70 FR 43251 (July 26, 2005). During this period, the 
subject articles would be entitled to enter the United States under 
bond, in an amount determined by the Commission and prescribed by the 
Secretary of the Treasury. The Commission is therefore interested in 
receiving submissions concerning the amount of the bond that should be 
imposed if a remedy is ordered.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues under review. The submissions 
should be concise and thoroughly referenced to the record in this 
investigation, including references to exhibits and testimony. 
Additionally, parties to the investigation, interested government 
agencies, and any other interested parties are encouraged to file 
written submissions on the issues of remedy, the public interest, and 
bonding. Such submissions should address the recommended determination 
by the ALJ on remedy and bonding. Complainants and the Commission 
investigative attorney are also requested to submit proposed remedial 
orders for the Commission's consideration. Complainants are also 
requested to state the dates that the patents expire and the HTSUS 
numbers under which the accused products are imported. The written 
submissions and proposed remedial orders must be filed no later than 
close of business on April 9, 2007. Reply submissions must be filed no 
later than the close of business on April 16, 2007. No further 
submissions on these issues will be permitted unless otherwise ordered 
by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. Any person desiring to submit a document 
to the Commission in confidence must request confidential treatment 
unless the information has already been granted such treatment during 
the proceedings. All such requests should be directed to the Secretary 
of the Commission and must include a full statement of the reasons why 
the Commission should grant such treatment. See 19 CFR 210.6. Documents 
for which confidential treatment by the Commission is sought will be 
treated accordingly. All nonconfidential written submissions will be 
available for public inspection at the Office of the Secretary.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in section 210.42-46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-46).

    Issued: March 30, 2007.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E7-6393 Filed 4-4-07; 8:45 am]
BILLING CODE 7020-02-P